http://www.fuldlawoffices.com/new-york-criminal-defense-practice.htmlWhen a person has been charged with a crime involving the element of “criminal possession”, it is crucial to recognize that the legal definition of “possession” is much broader than the common definition. In both New York and New Jersey, “possession” extends to that which is found even beyond one’s person, bag or clothing. Understanding the legal definition can help a person distance themselves from situations that could result in criminal liability for possession.

The New York Legislature has outlined two scenarios whereby drugs can be found in an area and each person in that area can be charged with the crime of Criminal Possession of a Controlled Substance. New York Penal Law §220.25 provides, in part, that: (1) The presence of a controlled substance in an automobile is presumptive evidence of knowing possession by each and every person in the automobile; and (2) The presence of a substance in open view in a room, other than a public place, is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance. However, these presumptions are not usually applied if the substance is found on the person of one of the occupants.

In New Jersey, one can be charged for either actual or constructive possession of illegal drugs or weapons[i]. The New Jersey Supreme Court has defined these two types of possession as follows:

A person actually possesses an object when he has physical or manual control of it. A person constructively possesses an object when, although he lacks "physical or manual control," the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time[ii].

Accordingly, the fact that one did not physically or manually control an illegal drug or firearm is not enough to absolve a person of criminal liability. In New York, Criminal liability can be placed on any occupant of the room or automobile containing an illegal substance. In New Jersey, possession can be charged whenever it can reasonably be inferred that a person had both knowledge of the presence of an object and the intent to exercise control.

Criminal Possession statutes are very intricate despite the seemingly straightforward titles. If you have been charged with Criminal Possession of an illegal substance or firearm, it is important to consult with Criminal Defense Attorney to learn more about these charges.

Correct, as the cited statutes define, presumptive or constructive possession only comes into effect when there is no actual or physical possession by any one person.

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About the Author

Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law.

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